Connell v. Chandler

• Decision Date: 01 January 1853
• Parties: CONNELL, GUARDIAN, v. CHANDLER, ADM'R, AND ANOTHER.
• Court: Texas Supreme Court

11 Tex. 249

CONNELL, GUARDIAN,

v.CHANDLER, ADM'R, AND ANOTHER.

Supreme Court of Texas.

1853.

It would seem that it is the duty of the Chief Justice, under the Statute (Hart. Dig., Art. 1153, 1154), without formal applications, to fix the amount of the year's allowance, and to set apart the property exempt from forced sale, at the times specified in the statute; but it is proper that applications be made, although they need not appear of record; and the requisite information must be afforded, to enable the Chief Justice to perform the duty according to the requirements of the law; at all events, where the Chief Justice has acted, and the widow or children complain of the amount, it cannot be objected to their petition for certiorari, that no application was made to the Chief Justice, in the premises.

Where there has been a failure, on the part of the Probate Court, to set apart for the use of the minor children the property exempt from forced sale, and the property has been sold by order of the Court, it is not error, in a certiorari from the District Court to revise and correct the proceedings in the Probate Court, to join the administrator, the purchaser of the property at the probate sale; the rule is that all the parties in interest, and whose rights are to be directly affected by the decree, must be made parties, in order that the Court may be enabled to render a decree which shall do ample and complete justice to all, and which shall bind all.

In a petition for a certiorari to revise and correct the proceedings in the Probate Court, where there has been a failure to set apart for the use of minor children the homestead exempt from forced sale, and the property has been sold under an order of that Court, it is not necessary to give a particular description of the land.

Filing an amendment without leave of the Court is an irregularity, but not such an one as should deprive a party of his right; the leave of the Court is a matter of course; and if the amendment be proper, and in proper time, and the omission to obtain leave has not been the occasion of surprise or prejudice to the opposite party, the amendment will be considered. (Note 42.)

Appeal from Caldwell. The appellant, as guardian of certain minor heirs, filed his petition in the District Court, under Article 807 of the Digest, to obtain a certiorari to bring up, for revision and correction, certain proceedings of the County Court, respecting the making of an allowance for the support of the plaintiff's wards, and the setting apart of the property exempt from forced sale, as provided in Articles 1153 and 1154 of the Digest. The petition alleged that the father died possessed of property real and personal; that administration was granted on the estate; that an inventory was returned by the administrator; that the deceased left no widow, and the plaintiff's wards were the only children of the deceased; and that the County Court did not set apart an allowance for their support, or the amount of property to which they were entitled, as exempt from forced sale, as the law required; but refused so to do; that only fifty acres were set apart to the minor children, when they were entitled to two hundred acres, and that the Court refused to make the allowance to which they were by law entitled; that Chandler (one of the appellees), had obtained administration on the estate, and, under an order of the Court, had sold a part of the land constituting the homestead, to which the said minor children were entitled; that Fuller (the other appellee) became the purchaser, and that the sale was illegal and void. The petition prayed for a certiorari to bring up, for revision and correction, the record of the proceedings of the County Court; that the proper allowance be made to the plaintiff's wards; that the property to which they were entitled, be set apart to them; that the sale of the land, a part of the homestead, be set aside and annulled, and the land, so sold, adjudged to them. Chandler and Fuller were made parties defendant.

The defendants filed an answer containing exceptions to the petition, and assigning as causes of exception the following: 1st. That it appeared from the record, brought up in obedience to the certiorari, that the plaintiff had not made application to the County Court to make the proper allowance, or to set aside the property to which his wards were entitled; 2d....